“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound (...) practical judgement. A virtue–centred account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)

In response to Lawrence Solum's advocacy of a ‘virtue–centred theory of judging’, I argue that there is indeed important work to be done in identifying and characterising those qualities of character that constitute judicial virtues – those qualities that a person needs if she is to judge well (though I criticise Solum's account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solum's more ambitious claims – that a judge's (...) vice necessarily corrupts her decisions, and that in at least some contexts we must define a legally correct decision as one that would be reached by a virtuous judge – should be rejected: we can undermine the former by attending to the requirements of due process, and the latter by attending to the ways in which a judge would try to justify her decision. (shrink)

This book explores the relevance of virtue theory to law from a variety of perspectives. The concept of virtue is central in both contemporary ethics and epistemology. In contrast, in law, there has not been a comparable trend toward explaining normativity on the model of virtue theory. In the last few years, however, there has been an increasing interest in virtue theory among legal scholars. 'Virtue jurisprudence' has emerged as a serious candidate for a (...) theory of law and adjudication. Advocates of virtue jurisprudence put primary emphasis on aretaic concepts rather than on duties or consequences. Aretaic concepts are, on this view, crucial for explaining law and adjudication. This book is a collection of essays examining the role of virtue in general jurisprudence as well as in specific areas of the law. Part I puts together a number of papers discussing various philosophical aspects of an approach to law and adjudication based on the virtues. Part II discusses the relationship between law, virtue and character development, with some of the essays selected analysing this relationship by combining both eastern perspectives on virtue and character with western approaches. Parts III and IV examine problems of substantive areas of law, more specifically, criminal law and evidence law, from within a virtue-based framework. Last, Part V discusses the relevance of empathy to our understanding of justice and legal morality. (shrink)

This paper examines the normativity of law, that is, law’s capacity to guide behavior by generating reasons for action, from the perspective of virtue jurisprudence. It articulates a virtue-based model of law’s normativity according to which the law generates first order reasons for action (that is, loyalty-reasons) that need to be factored in citizens’ and legal officials’ practical reasoning, which consists, primarily, in the search for the best specification of the values involved in light of an account (...) of the good life and the role that the law plays wherein. The outcome of this piece of practical reasoning is a judgment about what ought to be done, the rightness of which depends, on the proposed model, on whether it is a judgment that a virtuous person would characteristically do in the circumstances. This model, it is argued, has distinctive features that set it apart from some prominent accounts of the normativity of law. It may, however, be disqualified as a plausible alternative account of the normativity of law on the grounds that it fails to provide action-guidance. The last part of the paper responds to this objection in a way that unveils the relevance of the social dimensions of virtue to law’s normativity. (shrink)

Wealth and Virtue reassesses the remarkable contribution of the Scottish Enlightenment to the formation of modern economics and to theories of capitalism. Its unique range indicates the scope of the Scottish intellectual achievement of the eighteenth century and explores the process by which the boundaries between economic thought, jurisprudence, moral philosophy and theoretical history came to be established. Dealing not only with major figures like Hume and Smith, there are also studies of lesser known thinkers like Andrew Fletcher, (...) Gershom Carmichael, Lord Kames and John Millar as well as of Locke in the light of eighteenth century social theory, the intellectual culture of the University of Edinburgh in the middle of the eighteenth century and of the performance of the Scottish economy on the eve of the publication of the Wealth of Nations. While the scholarly emphasis is on the rigorous historical reconstruction of both theory and context, Wealth and Virtue directly addresses itself to modern political theorists and economists and throws light on a number of major focal points of controversy in legal and political philosophy. (shrink)

In this article the paradoxical role of legal science in legal practice is discussed. On the one hand, legal scientists do not agree on the criterions of the scientific character of legal science. On the other hand, even in the legal cases that are especially complicated it is possible to arrive at theoretically unquestionable decisions. The author of the article concludes that legal practice is based on fundamental theoretical insights; however, in legal practice these insights are used more intuitively than (...) reflectively. Therefore, the aim of the article is to rationally reconstruct these theoretical insights with reference to the ideas of modern schools of legal philosophy. For this purpose the ideas of the theory of natural law are discussed. It is concluded that in legal practice two provisions of natural law are applied: legal decisions ought to be reasonable and must include existential ends (basic values). The evolution of the legal positivism is discussed in the article and it is concluded that legal positivism offers the criterions of the scientific character of legal science by framing the procedural rules of the democratic process of lawmaking. These rules anticipate such conditions: consensus concerning decision making; equal participation of all members of legal discourse confirming normative decisions; the acceptability of consequences after the realisation of normative decisions; the possibility to reaffirm normative decisions, if necessary. The ideas of virtue jurisprudence are discussed and it is claimed that virtue jurisprudence as a criterion of the scientific character of law proposes such theoretical position: the decisions concerning human rights must supply the value system (hierarchy) and the virtues which are formed and justified in the long legal tradition. The article represents the use of these criterions of the scientific character of legal science by Jurgen Habermas to debate about legal prohibition of the improvement of the human genome by using modern technologies of genome engineering in the Convention of Human Rights and Biomedicine (Oviedo, 1997). (shrink)

This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means (...) of pursuing this end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK. (shrink)

The use of the term "applied ethics" to denote a particular field of moral inquiry (distinct from but related to both normative ethics and meta-ethics) is a relatively new phenomenon. The individuation of applied ethics as a special division of moral investigation gathered momentum in the 1970s and 1980s, largely as a response to early twentieth- century moral philosophy's overwhelming concentration on moral semantics and its apparent inattention to practical moral problems that arose in the wake of significant social and (...) technological transformations. The field of applied ethics is now a well established, professional domain sustained by institutional research centers, professional academic appointments, and devoted journals. As the field of applied ethics grew and developed, its contributors predominantly advocated consequentialist and deontological approaches to the problems they address; but lately a significant number of moral philosophers have begun to bring the resources of virtue ethics to bear upon the ever-evolving subject matters of applied ethics. (shrink)

First paragraph: It is worth distinguishing two kinds of role that ideas of virtue and vice might play in the criminal law (or in our theoretical understanding of the criminal law). Each kind admits of a range of variations; each can be more or less ambitious in scope and aim: but although there are of course quite close connections between the two kinds, we can usefully sketch them as two different ways of developing a virtue jurisprudence of (...) criminal law. Both kinds of role are connected to views of the proper aims of a system of criminal law: in the first case, a view of the further goods that criminal law should aim to achieve; in the second case, a view of the proper objects of criminal liability. (shrink)

The system of free expression John Milton defends in Areopagitica, a pamphlet against prior restraint in publishing, is often characterized as merely a proto-liberal, truth-based marketplace of ideas theory. But this represents a misunderstanding of Milton’s views on the freedoms of conscience, speech, and the press. The tendency in political theory, philosophy, and law to reduce the “free speech Milton” to Areopagitica, and the reduction of that essay to several soundbites, has meant sidelining both the significant exceptions to expressive liberties (...) that Milton calls for and also the role of the social in his theory. This incomplete characterization has enabled Milton’s misuse in First Amendment discourse and jurisprudence, where he is made to support hierarchical approaches to free speech that privilege public political speech and are therefore ill-equipped to address the full range of communicative experiences. More comprehensive readings of Milton, however, reveal both certain limits to free expression, and also deep consideration for a wide range of speech acts. By reading Milton’s theory of expressive liberties in light of the justifications he provides for those freedoms—i.e., virtue-building and Truth-seeking—this essay provides a fuller account of his views. What emerges is a distinctly Miltonian, virtue-driven “political theory of everyday talk” that locates value in even the most ordinary communicative acts. This theory—embracing both verbal and nonverbal expression—not only complements existing political theories of the everyday but can also help illuminate contemporary free speech concerns, many of which stem from the libertarian approach to expressive liberties that Milton helped inspire. (shrink)

This short piece is the introduction to the Special Issue on ‘Virtue and the Law’ published by Jurisprudence in March 2019 (vol 9, issue 1). It explains the scope of the project and its place in the unfolding of virtue jurisprudence that has occurred in the past few decades, as well as introducing the topics addressed in the volume. In the first couple of pages the authors/editors outline a very brief genealogy of virtue jurisprudence (...) and of its relation to both legal theory and virtue theory. The rest of the text presents the contributions to the volume in turn, identifying some of the substantive issues addressed by each of them and their place in the investigation of the interface between virtue theory and legal theory. (shrink)

This paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our understanding of (...) the judicial virtues and of the political implications of giving virtue a role in adjudication. (shrink)

Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists propose a solution to this ‘Demarcation Problem’ according to which the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. (...) Yet, the concept of law is an ‘artefact concept’, that is, a concept that picks out a phenomenon that necessarily owes its existence to human activities intended to create it. Artefact concepts, even simple ones like ‘chair’, are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostages to human ends and purposes, and also cannot be individuated by their natural properties. Twentieth-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artefact (namely, science). They failed, and spectacularly so, which led some philosophers to wonder, ‘Why does solving the Demarcation Problem matter?’ This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, in order not to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behaviour, we should abandon the Demarcation Problem in jurisprudence. (shrink)

In a series of powerful and challenging articles emerging since the mid-1990s, Brian Leiter has argued that certain theoretical strains in contemporary legal philosophy are ‘epistemologically bankrupt’, in virtue of their reliance on misguided argumentative devices: analysing concepts, such as the concepts of law and of authority; and doing so by appealing to intuitions regarding the correct way to understand the concepts in question. In response to this state of affairs, Leiter advocates that jurisprudence ought to attempt to (...) catch-up with ‘naturalistic’ developments which have influenced the direction of other branches of philosophy – such as epistemology, philosophy of mind, and moral philosophy – in the last few decades. This article offers a critical analysis of some of Leiter’s proposals for what Jurisprudence should become, in light of his views on the relevance of naturalism for this discipline. (shrink)

Humility holds a modest but important place among the judicial virtues. But in spite of its growing popularity, it does not yet have a place on the ‘central judicial virtues’ lists. This paper provides an argument that judicial humility, especially institutional judicial humility, should be considered a necessary judicial virtue at least in common-law jurisdictions. This is because it is a necessary ingredient in precedent-based decisions that are fully justified from the point of view of the law and of (...) political morality. Further, while it is sufficient that individual judges make decisions that a humble judge would have made, the judicial community must in fact be humble in order to produce fully justified common-law decisions – humility is therefore necessary as a community-virtue. (shrink)

ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance (...) of these conditions. The human excellences are developed in childhood and young adulthood by stable and nurturing families and by educational institutions: therefore, the law should support and foster families and schools. Although some critics have argued that an aretaic theory of legislation must support so-called “vice laws,” this is not the case. A virtue-centered approach must take into account the effects produced by criminalization of alcohol, drugs, gambling, and prosti... (shrink)

This essay explores two ideas that have recently played an important role in discourse about the American constitutional order. The first idea has emerged from the revival of civic republicanism. The republican revival has focused our attention on the classical conception of civic virtue. Our basic social arrangements ought to nourish a citizenry with the characteristics of mind and will that promote human flourishing. The second idea, expressed in critical race theory and feminist jurisprudence, is that we have (...) an obligation as a society and as scholars to attend to excluded voices. The juxtaposition of these two themes offers an opportunity to explore the relationship between classical philosophy and the American constitutional order. Civic republicanism is a complex set of ideas that has developed over the course of two millennia; understanding the republican revival requires a recognition that there are many strands in republican thought-that republicanism is itself a contested concept. In order to untangle the strands, I will examine classical moral and political philosophy, especially the work of Aristotle and Machiavelli, in relation to the work of the architects of the republican revival, including Frank Michelman, Suzanna Sherry, Cass Sunstein, and others. (shrink)

Humans and other species depend on the planet’s well-being to survive and flourish. The health of the planet and its ecosystems is under threat from anthropogenic climate change, pollution and biodiversity loss. The promotion of planetary health against entrenched degradation of nature urgently requires ethical guidance. Using an ecocentric virtue jurisprudence approach, this article argues that the highest end of safeguarding planetary health is to secure the flourishing of the Earth community, of which the flourishing of humanity is (...) but one component. The article demonstrates how law, despite its historic role in facilitating our present planetary crisis, has an untapped potential to redeem itself by promoting planetary flourishing through the creation of conditions conducive to the practice of moral virtues, which can help meet the challenges of the Anthropocene. Once given an ecocentric interpretation, the cardinal virtues of prudence, justice, courage and moderation, as well as their subvirtues, can justify or produce legal structures that address everything from the human right to a healthy environment to the rights of nature. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Leibniz’s Universal Jurisprudence: Justice as the Charity of the Wise by Patrick RileySusanna GoodinPatrick Riley. Leibniz’s Universal Jurisprudence: Justice as the Charity of the Wise. Cambridge: Harvard University Press, 1996. Pp. xiii + 338. Cloth, $39.95.Leibniz’s political views are often downplayed, if not simply ignored, by philosophers focusing on his metaphysical accounts of substance and force. That Leibniz himself does not view these two areas as (...) distinct is forcefully argued in Patrick Riley’s detailed account of Leibniz’s theory of justice. Under Riley’s presentation, Leibniz’s definition of justice as the “charity of the wise” depends crucially on both his monadology and his theodicy. And his political maneuverings, particularly with France, are dominated by this unique definition of justice.Riley begins his argument by detailing Leibniz’s objections to Descartes’s voluntarism and Hobbes’s mechanistic view of human nature and the emphasis on power as the foundation of moral truths. The central Leibnizian theme to which Riley returns repeatedly is perfection. A perfect God does not act on whim or power but on reason. Monads are created with the freedom to strive toward perfection. Love, or charity, becomes perfect by becoming universal. Justice is not, as Hobbes claimed, that which is determined to be good for the whole by an absolute power, but a love or benevolence for the whole, striving through reason for the best. Wisdom is the heart of justice, not power. And for Leibniz, wisdom is inseparable from charity. God wills to actualize the best of all possible worlds out of love and wisdom, thus, wise charity.But Leibniz’s view of justice as wise charity is not without problems, most significantly the problem of freedom. In his first chapter, “Foundations,” Riley skillfully raises this problem in the context not only of Leibniz’s political stance on justice but also in the context of his metaphysics and theodicy. It is in the second chapter, “Monadology and Justice,” that Riley does the bulk of the work relating the metaphysics with the moral-political: “... on the knowledge of substance, and in consequence of the soul, depends the knowledge of virtue and of justice” (Leibniz, as quoted in Riley, 51). Political philosophy cannot be done correctly without first acquiring an adequate and proper account of substance, something the materialist Hobbes had failed to do. But because Leibniz has so closely linked his politics with his metaphysics, the perhaps insurmountable problem of freedom in his metaphysics hounds his politics. “If there are no autonomous persons with nonillusory ‘wills’, there cannot be ‘general benevolence’—for benevolence is just [End Page 470] ‘good willing’, and Leibniz invariably equates benevolentia with caritas sapientis. Without a certain kind of will, then, wise charity cannot serve as the heart of a justice which is more than sovereign-ordained law” (61). To prevent Hobbes from ruling the day, Leibniz must, as Riley correctly notes, devise a metaphysics which allows for freedom for both God and man.And here arises the one troubling aspect of Riley’s work. He addresses the problem of freedom in Leibniz’s metaphysics, but there is no discussion of the recent work done by such scholars as Robert Adams, whose book Leibniz: Determinist, Theist, Idealist makes significant contributions on exactly this topic. Regarding Leibniz’s serpentine defense of freedom, Riley does little more than bring up the problem and comment that Leibniz had a problem which, ultimately, he seemed unable to resolve. In fact, Riley shows little appreciation for the work done by mainstream scholars in the area of Leibniz’s metaphysics. If Riley’s work centered primarily on Leibniz’s political writings this might not matter, but given that the thrust of the first part of the book is to argue that Leibniz’s political theory is not merely compatible with his metaphysics but arises out of it, so that an understanding of Leibniz’s metaphysics is essential to grasping the logic of his political views, the absence of current scholarship on the metaphysics is troubling. References in footnotes confirm that Riley had read Adams’s book, as well as The Cambridge Companion to Leibniz, which contains David Blumenfeld’s excellent... (shrink)

This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary (...) class='Hi'>virtue – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues ; and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smith's device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-thinking member of society' test in defamation law. (shrink)

In this paper, I intend to articulate an answer to the powerful particularist objection against the notion of moral and legal reasoning based on universal principles. I defend a particular way of specifying and contextualising universal principles. I claim that this account preserves legal and moral justification conceived as subsumption to legal and moral principles. I also try to show how virtues can be reconciled with this account, i.e. what is the right place for virtues in legal adjudication. To carry (...) this out, I draw on a virtue epistemology. (shrink)

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg (...) 2004, 2006). Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism, and show how it can defuse an influential challenge to simple positivist accounts of law. (shrink)

The problem : commerce and corruption -- Smith's defense of commercial society -- What is corruption? : political and psychological perspectives -- Smith on corruption : from the citizen to the human being -- The solution : moral philosophy -- Liberal individualism and virtue ethics -- Social science vs. moral philosophy -- Types of moral philosophy : natural jurisprudence vs. ethics -- Types of ethics : utilitarianism, deontology, and virtue ethics -- Virtue ethics : modern, ancient, (...) and Smithean -- Interlude : the what and the how of TMS VI -- The what : Sith's "practical system of morality" -- The how : rhetoric, audience, and the methods of practical ethics -- The how : the ascent of self-love in three stages -- Prudence or commercial virtue -- The challenge : from praise to prudence -- Educating the vain : fathers and sons -- Self-interest rightly understood -- The advantages and disadvantages of prudence -- Magnanimity or classical virtue -- The problems of prudence and the therapy of magnanimity -- Up from individualism : desert, praiseworthiness, conscience -- Modernity, antiquity, and magnanimity -- The dangers of magnanimity -- Beneficence or christian virtue -- Between care and caritas -- Benevolence and beneficence and the human telos -- The character and purposes of the wise and virtuous man -- Wisdom and virtue and Adam Smith's apology -- Epilogue: The "economy of greatness". (shrink)

Thomas Aquinas offers teleological systematisation of the habits needed for human flourishing. His metaphysical jurisprudence remodels ethics upon this, rather than on a moral precept. 'Eternal law' governing the world determines 'natural law', reflected in human legislation (a variety of the 'anthropic principle'). Finally, law, unwritten, is infused spirit as self-consciousness, 'universal of universals'. Acquired virtues elicit this, become effusion, represented in religion as gifts or graces. But mind's or spirit's omnipresence, necessarily 'closer to me than I am to (...) myself', supersedes the abstractions of heteronomy versus autonomy. The habitual well-being brought by prudence, justice, courage and temperance prompts this picture of gifts and graces. The 'theological virtues', faith (explicit or implicit) and hope fulfilled in love, 'crown' our natural rationality, set toward as being the universal. 'Become what you are'. Heteronomous law is thus 'defused' at root by grounding it entirely upon immovable spiritual (mental) inclination towards universal fulfilment as naturally desired, reflection shows. Virtue, finally, is best assessed as a capacity for the individually beautiful yet habit-based action, Aristotle's to kalon. Aquinas puts this picture as summed up in the beatitudes of the 'Sermon on the Mount'."--back cover. (shrink)

Chapter I of The Concept of Law raises a fourth, capital, issue, besides the three well-known ones: i.e., the meta-philosophical issue concerning the point, the matter, and the method of legal theory. The paper purports to present Hart’s philosophy of jurisprudence in its best light, also by referring to some of its theoretical pay-offs, and to defend it, so far as possible, against a few criticisms by supporters of different outlooks (Raz, Leiter, and Dworkin)Resumen:El capítulo 1 de El concepto (...) de derecho plantea una cuarta cuestión fundamental, además de las otras tres bien conocidas: a saber, la cuestión meta-filosófica relacionada con el objeto, materia y método de la teoría jurídica. El propósito de este artículo es exponer la filosofía del derecho hartiana en su mejor versión, mediante la referencia a algunas de sus ventajas teóricas, con el fin de defenderla, en la medida de lo posible, de algunas de las críticas formuladas por los defensores de otros enfoques (Raz, Leiter y Dworkin). (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought (...) to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Adam Smith and the Virtues of EnlightenmentFred D. Miller Jr.Charles L. Griswold. Adam Smith and the Virtues of Enlightenment. Cambridge: Cambridge University Press, 1999. Pp. xiv + 412. Cloth, $59.95.For over a century, scholars have been vexed by the so-called "Adam Smith problem," which concerns the relationship between the two works which Smith published during his lifetime: The Theory of Moral Sentiments (TMS) in 1759, and An Inquiry (...) into the Nature and Causes of the Wealth of Nations (WN) in 1776 (citations are to the Liberty Classics reprints of the Oxford University Press editions). Many have regarded them as discordant: while TMS is apparently concerned with classical ethics, WN seems to assume that humans are basically egoistic, although they can be directed toward the public good by means of the "invisible hand." It is tempting to view Smith as a transitional author: TMS is the swan song of virtue ethics, whereas WN is a pioneering work in a new tradition of political economy.Griswold challenges this temptation in this brilliant study, arguing that Smith had a coherent and integrated philosophical viewpoint encompassing TMS, WN, and other surviving writings. Griswold views Smith as offering a virtue ethics and "throwing in his lot with the ancient moralists" (65). He argues, "We cannot grasp Smith's diagnosis of and therapy for the modern age without devoting considerable attention to his analysis of the virtues (especially the virtue of justice) as well as to the theory of the emotions, of the impartial spectator, and of sympathy" (20). Smith tried to reconcile a traditional ethics with modern skepticism and the new values associated with commercial society and religious secularism. Griswold's book illuminates a wide range of themes in Smith's moral philosophy: his view of rhetoric, method, and system underlying TMS (chapter 1); sympathy and self-interest (chapter 2); moral psychology and the theory of the impartial spectator (chapter 3); Smith's skepticism and reservations about philosophy (chapter 4); virtue theory (chapter 5); justice (chapter 6); the relationship between TMS and WN (chapter 7); and nature versus artifice in ethics (chapter 8). The epilogue critically discusses whether Smith's moral theory falls into subjectivism, and whether [End Page 439] Smith goes too far in excluding philosophers such as Socrates from ordinary moral discourse.A brief review cannot do justice to Griswold's compelling interpretation, and I shall focus on his solution to "the old problem of how the moral theory and the political economy mesh" (21). Griswold argues, "Smith sees himself as synthesizing an ancient view about the nature of virtue with a modern approach to the problem of the source of moral value. Consequently the moral psychology (especially the notions of sympathy and the impartial spectator) and the virtue theory must be understood in light of each other" (181). Further, "The virtue theory is the moral foundation of Smith's political economy, political theory, and 'natural jurisprudence.' Hence the virtue theory is closely tied to his doctrine of liberty as well as to his views about the pursuit of wealth. However 'ancient' the virtue theory may in some respects be, Smith combines it with a modern view of the social and political institutions appropriate to virtue" (ibid.). With impressive erudition Griswold argues that "taken together... TMS and WN form complementary parts of a larger whole" (265), and that Smith thinks "the virtues of a free and commercial society" may be defended on the basis of views espoused in WN: skepticism of state interference in economic and social matters, anti-utopianism, and the doctrine of the invisible hand (21). Yet WN does not place blind faith in laissez faire but advocates social justice, compulsory public education and greater taxes on the rich (254, 264, 359).Has Griswold, then, finally solved the Adam Smith Problem? There remains the problem that WN apparently neglects central themes of TMS: sympathy, the impartial spectator, and benevolence. In TMS virtue has distinctive components: "Concern for our own happiness recommends to us the virtue of prudence: concern for that of other people, the virtues of justice and beneficence" (TMS 262). These constitute perfect virtue: "The man who acts according to the rules of perfect... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Adam Smith and the Virtues of EnlightenmentFred D. Miller Jr.Charles L. Griswold. Adam Smith and the Virtues of Enlightenment. Cambridge: Cambridge University Press, 1999. Pp. xiv + 412. Cloth, $59.95.For over a century, scholars have been vexed by the so-called "Adam Smith problem," which concerns the relationship between the two works which Smith published during his lifetime: The Theory of Moral Sentiments (TMS) in 1759, and An Inquiry (...) into the Nature and Causes of the Wealth of Nations (WN) in 1776 (citations are to the Liberty Classics reprints of the Oxford University Press editions). Many have regarded them as discordant: while TMS is apparently concerned with classical ethics, WN seems to assume that humans are basically egoistic, although they can be directed toward the public good by means of the "invisible hand." It is tempting to view Smith as a transitional author: TMS is the swan song of virtue ethics, whereas WN is a pioneering work in a new tradition of political economy.Griswold challenges this temptation in this brilliant study, arguing that Smith had a coherent and integrated philosophical viewpoint encompassing TMS, WN, and other surviving writings. Griswold views Smith as offering a virtue ethics and "throwing in his lot with the ancient moralists" (65). He argues, "We cannot grasp Smith's diagnosis of and therapy for the modern age without devoting considerable attention to his analysis of the virtues (especially the virtue of justice) as well as to the theory of the emotions, of the impartial spectator, and of sympathy" (20). Smith tried to reconcile a traditional ethics with modern skepticism and the new values associated with commercial society and religious secularism. Griswold's book illuminates a wide range of themes in Smith's moral philosophy: his view of rhetoric, method, and system underlying TMS (chapter 1); sympathy and self-interest (chapter 2); moral psychology and the theory of the impartial spectator (chapter 3); Smith's skepticism and reservations about philosophy (chapter 4); virtue theory (chapter 5); justice (chapter 6); the relationship between TMS and WN (chapter 7); and nature versus artifice in ethics (chapter 8). The epilogue critically discusses whether Smith's moral theory falls into subjectivism, and whether [End Page 439] Smith goes too far in excluding philosophers such as Socrates from ordinary moral discourse.A brief review cannot do justice to Griswold's compelling interpretation, and I shall focus on his solution to "the old problem of how the moral theory and the political economy mesh" (21). Griswold argues, "Smith sees himself as synthesizing an ancient view about the nature of virtue with a modern approach to the problem of the source of moral value. Consequently the moral psychology (especially the notions of sympathy and the impartial spectator) and the virtue theory must be understood in light of each other" (181). Further, "The virtue theory is the moral foundation of Smith's political economy, political theory, and 'natural jurisprudence.' Hence the virtue theory is closely tied to his doctrine of liberty as well as to his views about the pursuit of wealth. However 'ancient' the virtue theory may in some respects be, Smith combines it with a modern view of the social and political institutions appropriate to virtue" (ibid.). With impressive erudition Griswold argues that "taken together... TMS and WN form complementary parts of a larger whole" (265), and that Smith thinks "the virtues of a free and commercial society" may be defended on the basis of views espoused in WN: skepticism of state interference in economic and social matters, anti-utopianism, and the doctrine of the invisible hand (21). Yet WN does not place blind faith in laissez faire but advocates social justice, compulsory public education and greater taxes on the rich (254, 264, 359).Has Griswold, then, finally solved the Adam Smith Problem? There remains the problem that WN apparently neglects central themes of TMS: sympathy, the impartial spectator, and benevolence. In TMS virtue has distinctive components: "Concern for our own happiness recommends to us the virtue of prudence: concern for that of other people, the virtues of justice and beneficence" (TMS 262). These constitute perfect virtue: "The man who acts according to the rules of perfect... (shrink)

ABSTRACTIt has become a commonplace that human beings possess human rights ‘simply in virtue of being human’. Exactly what this formula entails and whether it is cogent remains largely obscure, however. To remedy this situation, the article distinguishes between an interpretation of the formula according to which ‘being human’ is a practical condition for holding human rights and a reading which takes ‘being human’ to be a moral reason for holding human rights. It argues that only under the second (...) reading is there a limited sense in which it is correct that human beings possess human rights ‘simply in virtue of being human’. The article also considers if the concept of human dignity can provide a more convincing approach to the formula, and argues that it cannot. (shrink)

The essay replies to comments by Finnis, Gardner and Endicott, on my book, Law as a Moral Idea. It is questioned whether Finnis is right to suggest that governance by law is a requirement of justice. It is suggested that Hart's positivism may have rested upon an unduly private conception of morality. Gardner's suggestion that Law as a Moral Idea falsely manufactures disagreement with Hart is rejected, principally by pointing out that Gardner focuses upon only one issue, where the book (...) already acknowledges that Hart might conceivably agree, and ignores other issues where the disagreement with Hart seems indisputable. In response to Endicott, it is acknowledged that 'politics' could be understood as a moral idea comparable to the idea of 'law', but denied that this robs either thesis of interest. The nature of doctrinal reasoning and law's justificatory force is then discussed. (shrink)

In this paper I argue that political liberalism is not the “minimalist liberalism” characterised by Michael Sandel and that it does not support the vision of public life characteristic of the procedural republic. I defend this claim by developing two points. The first concerns Rawls's account of public reason. Drawing from examples in Canadian free speech jurisprudence I show how restrictions on commercial advertising, obscenity and hate propaganda can be justified by political values. Secondly, political liberalism also attends to (...) the identity, and not just the interests, of its citizens. It attempts to cultivate certain virtues of character. But it does so in a way that does not entail the acceptance of a comprehensive or perfectionist doctrine. Rawls's defence of neutrality of aim does not mean the state should be neutral towards all the views its citizens espouse. I conclude that political liberalism shares little with the doctrine Sandel claims is embedded in American law. (shrink)

In his new book, The Grammar of Criminal Law: American, Comparative, and International, celebrated criminal law theorist George Fletcher excavates criminal law doctrine across a number of countries and cultures to reveal a small number of basic shared structures. Among these structures Fletcher argues that it is a criminal law justified by Kantian legal morality, in contrast to perfectionist or communitarian theories, that is legitimate. Thus, Fletcher proposes, along with legal positivists, that the validity of legal norms does not turn (...) on the moral claims that may underlie a perfectionist or virtue theory of law. Fletcher's claims about the shared structure of law do more than propose an analytical model of valid criminal law. Most importantly, Fletcher draws attention to the often under explored normative implications of proposed models of law in analytical jurisprudence. Virtue theories of law challenge Fletcher's view of legitimate criminal law by proposing a fundamentally different jurisprudential model of valid law. Rather than liberalism's commitment to preserving autonomy or the neutrality of the state as primary, virtue theories forward competing models of law grounded in preserving sound practical reason or the promotion of human flourishing. And while these models find a distinct and mediated role for morality to play in the determination of legitimate law, they ultimately deny Fletcher's claim that morality cannot be incorporated into law without being referenced by the law and that our political commitments must precede our moral commitments. This article places Fletcher's model of criminal law within the positivist jurisprudential landscape and connects that model of law to Kantian legal duties. The piece then explores the particular resources virtue theories of law forwarded by Lawrence Solum and Kyron Huigens have to address the role of political concerns within a virtue theory of law. It examines whether a sophisticated virtue theory finds a place for political concerns that are sufficient to defeat liberal philosophical critiques and undermine Fletcher's claims for criminal law. More importantly, rather than simply exploring the competing jurisprudential models, this article explores the important normative commitments that stem from competing jurisprudential models. Ultimately, the article concludes that understanding certain factors about the very nature of law generally and criminal law particularly leads one to affirm Fletcher's claims and limits the justification of law to our deontic duties. (shrink)

Work with the Angels to Detox Your Body and Energy Detoxing with the help of your angels is a gentle way to release impurities from your body, fatigue, and addictions. Doreen Virtue and naturopath Robert Reeves teach yousimple steps to increase your energy and mental focus, banish bloating, feel and look more youthful, and regain your sense of personal power. Rid your life of physical toxins, as well as negative emotions and energies. Angel Detox guides you step-by-step on how (...) to detox your diet, lifestyle, and relationships. You'll learn how to reduce or eliminate cravings for unhealthful food and substances, feel motivated, and enjoy wellness in all areas of your life. This book also includes 7-Day Detox Plans for those wanting to quit smoking or drinking, or to flush out environmental pollution. (shrink)

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless re...

Difficult relationships and challenging situations all come down to one thing: drama. In this groundbreaking book, Doreen Virtue guides you through the process of determining what your Drama Quotient is. You will learn how much you are unnecessarily tolerating and absorbing from other people and situations. Doreen highlights the difference between detaching from drama and being compassionate and helpful, and she shows you how to: Deal with relatives, friends, and co-workers who are addicted to drama Assess your own level (...) of drama addiction Stop attracting and creating negativity in your life Go on an overall Drama Detox to clear away negativity, and let your light shine through! (shrink)

This essay explores the development of "virtue jurisprudence," a general theory of law that draws on ideas developed in virtue ethics.